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American Tunaboat Ass'n v. Baldrige

ELR Citation: 14 ELR 20654
Nos. No. 82-5588, 738 F.2d 1013/21 ERC 1621/(9th Cir., 07/24/1984)

The court holds that the National Oceanic and Atmospheric Administration (NOAA) arbitrarily failed to use the best scientific evidence available in formulating Marine Mammal Protection Act rules on the incidental killing of porpoises by purse seine tuna fishermen. NOAA's formal rulemaking must be reviewed under the substantial evidence and arbitrary and capricious standards. The court rules that an agency rule may be found arbitrary and capricious even though supported by substantial evidence, if other evidence in the record detracts from that relied on by the agency. The court holds first that NOAA's refusal to use data from federal observers of tunaboats along with aerial survey and research vessel data to determine school size was arbitrary and capricious. Second, NOAA's assumption that all schools of 15 or more porpoises would be observed by aerial survey was not supported by substantial evidence. Third, it was arbitrary for NOAA to disregard post-1977 data collected by federal observers when it established the range of the porpoises. The court affirms the district court's order that NOAA must revise the regulations in accordance with the prior decision of an administrative law judge.

Counsel for Appellant
Peter Bowie, Ass't U.S. Attorney
940 Front St., Rm. 5N19, San Diego CA 92189
(619) 895-5610

Kathryn Fuller, Donald A. Carr
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7553

Counsel for Appellee
August Felando
American Tunaboat Association
1 Tuna Lane, San Diego CA 92101
(619) 233-6405

David G. Burney
United States Tuna Foundation
2033 M St. NW, Suite 625, Washington DC 20036
(202) 857-0610

John A. Hodges
McDermott, Will & Emery
1850 K St. NW, Suite 500, Washington DC 20006
(202) 887-8000

Before ANDERSON and FARRIS, Circuit Judges, and SOLOMON,* District Judge.